Photo by AJ Colores on Unsplash
Brianna Vollman, Blog Editor, University of Cincinnati Law Review
Over the past two months, protestors have filled the streets of United States cities, large and small, to protest police brutality and the deaths of Black Americans at the hands of police. Primarily sparked by the death of George Floyd, a Black man who was suffocated by a white police officer in Minneapolis during his arrest, protestors march worldwide for racial justice and for police accountability. Multiple bills have been written to attempt to address systemic racism and the misdeeds of the police, notably, Representative Justin Amash has written a bill that would abolish the doctrine of qualified immunity. Excessive force is a core issue of police brutality.
II. Circuit Split
Less than two weeks before George Floyd’s death, the Fifth Circuit weighed in on a circuit split relevant to the police and the use of force. The circuit split has existed for two decades regarding the proper timeframe to assess the reasonableness of the use of force in police misconduct claims, created by Section 1983 of the United States Code. The use of excessive force during a seizure, often times an arrest, violates the Fourth Amendment, which protects citizens against unreasonable searches and seizures. The Supreme Court has explained that analysis of reasonableness of force under this section must necessarily look to the facts and surrounding circumstances, such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” The Fifth Circuit has articulated three factors that must be established for a petitioner to prevail on a Section 1983 claim: (1) injury (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable. The third factor, dealing with reasonableness, is where the brunt of the circuit split lies.
The Fifth Circuit, just two months ago, determined that only the moments immediately before the threat of force are relevant to the reasonableness inquiry. The Court explicitly disagrees with the Tenth Circuit, which has held that the timeframe should sometimes be extended, including almost the entirety of officer’s actions leading up to the threat of force, causing officers to use force themselves. The Tenth Circuit’s articulation of the timeframe has been coined the “state-created-need theory,” which highlights circumstances in which an officer’s reckless actions brought about the need to use force. The Fifth and Tenth Circuit have come to an explicit disagreement, and other circuits have previously weighed in on the issue.
In 1997, the Tenth Circuit dealt with a Section 1983 claim brought by a woman whose husband, Terry Allen, was shot and killed by police during his attempted arrest. Officers were aware that Mr. Allen was suicidal and armed. The officers allegedly ran screaming up to Mr. Allen’s car, leading to a ninety-second altercation that resulted in Mr. Allen’s death. The Tenth Circuit explained that “the excessive force inquiry includes not only the officers’ actions at the moment that the threat was presented, but also may include their actions in the moments leading up to the suspect’s threat of force.” The court quoted a previous Tenth Circuit case, Sevier, in determining that not only does a court look to the threat of danger at the moment force was used, but also “whether Defendants’ own reckless or deliberate conduct during the seizure unreasonably created the need to use such force.” The court determined that conflicting testimony about how the officers approached the vehicle was a genuine issue of material fact, denying summary judgment. Importantly, the Tenth Circuit has specified that this slightly broader inquiry into the officers’ actions is only relevant if their actions are “immediately connected” to the seizure and the threat of force.
The Tenth Circuit’s state-created-need theory is supported by the First and Third Circuits. The First Circuit adopted the broader reasonableness inquiry in rejecting the analysis that “the police officers’ actions need be examined for ‘reasonableness’ under the Fourth Amendment only at the moment of the shooting.” The Third Circuit, in assuming that the reasonableness inquiry applies to all pre-seizure conduct, explained that “there are considerable practical problems with trying to wrest from a complex series of events all and only the evidence that hurts the plaintiff.” Although the Tenth, First and Third Circuits reject such a narrow reasonableness inquiry, these circuits stand alone in their usage of the broader, state-created-need theory.
The Fifth Circuit’s recent decision rejects the state-created-need theory. In Malbrough, officers were conducting a warrant on the SUV of Anthony Campbell, a known drug dealer, while he was inside the car with friends. Mr. Campbell attempted to drive away, knocking an officer into a bush. This led to shots being fired, killing Mr. Campbell. The Fifth Circuit explicitly rejected the state-created-need theory, explaining that the law of the Fifth Circuit applies and past cases have zeroed in on “whether officers or others were ‘in danger at the moment of the threat that resulted in the officer’s use of deadly force.’” The court explained that the moment of the threat, not manner of the officers’ arrival at that threat, is the relevant timeframe in assessing reasonableness of the use of force.
The Fifth Circuit has the support of the Seventh, Eighth and Fourth Circuits. The Seventh Circuit explained that only unreasonable seizures are prohibited by the Fourth Amendment, while unreasonable conduct generally is not prohibited. The Eighth Circuit explained, “it may appear, in the calm aftermath, that an officer could have taken a different course, but we do not hold the police to such a demanding standard . . . . Police officers have tough jobs. . . .” Similarly, the Fourth Circuit determined that events leading up to a shooting were not probative because officers often make “split-second judgments,” again supporting that the reasonableness inquiry should only look at the moment before force is used. The Sixth Circuit has not explicitly chosen a side in this split and has issued separate decisions impliedly supporting both sides of the split.
When the events and actions of the officers leading up to the officer’s use of force are “immediately connected” to seizure and the threat of force, courts should adopt the stricter, state-created-need theory. In light of public outcry against police brutality, a more “demanding standard” is appropriate. Police indeed have a “tough job,” but in no way should officers not be held accountable for their own reckless actions that brought about the need for force, and sometimes, that end in the death of a civilian. Further, officers have training in how to deal with these tense “split-second judgments” and also have training on how to deal with mentally ill civilians. Thus, this expanded, more demanding standard merely requests that officers use their training and be held accountable when they do not use what they’ve been taught.
With the expanded timeframe, the actions leading up to the initial threat of force may reveal that officers handled the situation poorly, bringing about a violent response from the civilian. Just even one minute before the threat of force may give enough insight into whether the officers’ use of force were truly reasonable. Of course, this standard may not always reveal evidence that helps the defendant; but, this standard is fairer to civilians arrested in situations where the police indeed recklessly escalated the pre-seizure altercation.
Civilians should not be excepted to remain perfectly calm when a gun is pointed at them; police officers, who have received training and are paid to perform this duty, should be the party to the altercation expected to deescalate tense situations. The state-created-need theory does not expand the timeframe in an irrelevant manner; rather, the theory looks at the related events leading up to the threat of force by the civilian relevant to the reasonableness of officers’ eventual use of force. Defendants have the right to the full breadth of the Fourth Amendment and to be arrested in a reasonable manner, regardless of their alleged wrongdoings.
Evaluating all pre-seizure actions of police when assessing reasonableness of force used enables courts to more accurately determine whether the force used was excessive. In some cases, looking to the recklessness of the officers may allow the aggrieved party to succeed on their excessive force claim. And in a time of combatting police brutality and seeking police accountability, courts should adopt the state-created-need theory.
 June 3 coverage of nationwide unrest and ongoing protests, NBC News, (June 3, 2020) https://www.nbcnews.com/news/us-news/blog/2020-06-03-george-floyd-protests-n1223081
 Protests across the globe after George Floyd’s death, CNN, (June 13, 2020, 3:22 PM) https://www.cnn.com/2020/06/06/world/gallery/intl-george-floyd-protests/index.html
 Ian Millhiser, 3 ways to ensure that rogue cops aren’t above the law, Vox, (June 9, 2020, 8:50 AM) https://www.vox.com/2020/6/9/21284270/qualified-immunity-rogue-cops-justin-amash-8-cant-wait-supreme-court-justice-in-policing. “Qualified immunity protects a government official from lawsuits alleging that the official violated a plaintiff’s rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right.” Legal Information Institute, https://www.law.cornell.edu/wex/qualified_immunity
 Malbrough v. Stelly, 19-30269, 2020 WL 2507355, at *4 (5th Cir. May 14, 2020).
 “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.” 42 U.S.C. § 1983 (2020).
 Malbrough, 19-30269, 2020 WL 2507355, at *3 n. 7.
 Graham v. Connor, 490 U.S. 386, 396 (1989).
 Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008) (quoting Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007)).
 Malbrough, 19-30269, 2020 WL 2507355, at *4.
 Allen v. Muskogee, Okl., 119 F.3d 837, 840 (10th Cir. 1997).
 Malbrough, 19-30269, 2020 WL 2507355, at *4; Muskogee, 119 F.3d at 840.
 Muskogee, 119 F.3d at 839.
 Id. at 840, quoting Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699 (10th Cir.1995).
 Muskogee, 119 F.3d at 840; Sevier, 60 F.3d at 699.
 Muskogee, 119 F.3d at 841.
 Romero v. Bd. of County Comm’rs, 60 F.3d 702, 705 n. 5 (10th Cir.1995); See also Medina v. Cram, 252 F.3d 1124, 1132 (10th Cir. 2001).
 St. Hilaire v. City of Laconia, 71 F.3d 20, 26 (1st Cir. 1995); See also Hegarty v. Somerset County, 53 F.3d 1367, 1375 (1st Cir. 1995).
 Abraham v. Raso, 183 F.3d 279, 291 (3d Cir. 1999).
 Malbrough, 19-30269, 2020 WL 2507355, at *4.
 Malbrough, 19-30269, 2020 WL 2507355, at *1-2.
 Malbrough, 19-30269, 2020 WL 2507355, at *4, quoting Harris v. Serpas, 745 F.3d 767, 773 (5th Cir. 2014) (emphasis in original).
 Malbrough, 19-30269, 2020 WL 2507355, at *4,
 Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir. 1992)
 Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir. 1996).
 Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991).
 See Claybrook v. Birchwell, 274 F.3d 1098, 1104–1105 (6th Cir.2001); But see Dickerson v. McClellan, 101 F.3d 1151, 1160–62 (6th Cir.1996).